A federal appeals court is weighing whether for-profit businesses can ask for an exemption from the health care law’s contraceptive mandate based on the owner’s religious views.

Two brothers, Francis and Philip M. Gilardi, in Ohio say the law
would require them to violate their Roman Catholic religious
beliefs by forcing them to provide contraception for their
employees.

During a hearing Tuesday, one judge on the United States Court of
Appeals for the District of Columbia Circuit pointed out the
Gilardis’ companies, Freshway Foods and Freshway Logistics of
Sidney, Ohio, are not religious groups and thus will have no
claim to exemption.

"I don't see how the government doesn't prevail," said
Judge Harry T. Edwards.

The other two judges on the panel pressed more against Department
of Justice lawyer Alisa Klein’s defense of the government’s
mandate right.

Judge Janice Rogers Brown asked if the government is requiring
the brothers to forgo their constitutional rights. Klein said the
Giraldis weren’t making a constitutional claim, but an injunction
under the Religious Freedom Restoration Act of 1993, which states
that the “Government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of
general applicability.”

Brown asked Klein if religious owners of corporations have no
right to free exercise of religion.

"There is no substantial burden on shareholders” and it’s
the corporation that has to meet the obligation, Klein responded.

An earlier rejection in trial court concluded the Giraldis’
assertion that demanding companies comply with the contraception
mandate was not the same as requiring the brothers to do so
themselves.

"The Freshway Corporations are engaged in purely commercial
conduct and do not exercise religion" under the applicable
law, Judge Emmet G. Sullivan wrote.

The Giraldis argued in court filings that corporations often
engage in "quintessentially religious acts such as tithing,
donating money to charities, and committing to act in accordance
with the teachings of a religious faith," as they said their
own businesses do.

The brothers say they could face $14.4mn in annual penalties for
not complying with the mandate. A separate appeals court has
barred the government from enforcing they comply with the
requirement until their case is settled.

The law already exempts houses of worship from the contraceptive
requirement.

A similar case involving Hobby Lobby may reach the Supreme Court,
a move that has the support of the Obama administration. The
craft company and a sister organization won a temporary
injunction from the contraception mandate after the 10th US
Circuit Court of Appeals ruled in their favor.